Will Goldstone’s retraction provoke another Cast Lead?

Richard Goldstone, the international jurist whose now-notorious report on Gaza tarred the Israeli army with war crimes, backtracked unexpectedly and very publicly on 2 April in the pages of the Washington Post.

For 18 months Goldstone had suffered a campaign of character assassination by Israel and its supporters as they sought to discredit his United Nations investigation into Israel’s attack on Gaza in winter 2008-09. Goldstone, a South Africa judge who made his name undermining the legal foundations of apartheid rule and later prosecuting war criminals from Rwanda and the former Yugoslavia, was quickly cast as the self-hating Jew who had helped to author an anti-Semitic report. His professions of “love for Israel”, made as he defended his role, served only to further incense critics.

Israel had been deeply offended by the allegation from Goldstone’s team that its army – like Hamas, the Palestinian faction that rules Gaza – committed war crimes and crimes against humanity during Israel’s three-week rampage, known as Operation Cast Lead, through the tiny coastal enclave. Cast Lead killed 1,400 Palestinians, the majority of them civilians, including more than 300 children; on the Israeli side, 13 died, including 10 soldiers, four of whom were killed by friendly fire.

But Goldstone revised some of the findings of his UN mission in the Post article, concluding that the report would have been different “if I had known then what I know now”. His “reconsideration”, as he termed it, provoked an immediate flood of commentary, some of it claiming that Israel was finally vindicated, while others asked in bafflement what had changed to justify Goldstone’s about-turn.

Dubious premises

Although the Goldstone Report, published in September 2009, broke new ground in holding Israel to account for its army’s methods of conducting warfare, some critics pointed out when it first appeared that the UN panel had ducked the most contentious issue about Cast Lead – whether the operation was legitimate in the first place.

Implicitly, Goldstone’s team needed to accept several dubious premises to back Israel’s view of Cast Lead as an act of self-defence: that Gaza’s occupation ended with the withdrawal of Jewish settlers in 2005, despite Israel’s continuing control of all the borders; that Israel’s subsequent siege of the enclave, a policy of collective punishment of the civilian population, was not itself an act of hostility; and that Israel had to resort to warfare to solve its conflict with Hamas and the rockets the group intermittently fired into Israel.

In fact, Israel had broken a lengthy ceasefire with Hamas several weeks before Cast Lead and then, when the militant group started firing rockets into Israel again, had refused talks to renew the truce. A letter from 30 leading international jurists published by the UK Sunday Times during Cast Lead observed that the operation was actually a war of “aggression, not self-defence, not least because its assault on Gaza was unnecessary.”

Furthermore, as noted by Richard Falk, an American authority on international law at Princeton University, there is much evidence that the Israeli army planned Cast Lead at least six months before the attack and that the timing was related not to pressing Israeli security needs but to political considerations: the ruling Kadima party was facing an election a few weeks later and appeared to want to exploit political paralysis in the US as George Bush handed over the keys of the White House to Barack Obama. Falk also points out that the Goldstone Report ignored the fact that “Israel denied the civilian population of Gaza the option to leave the war zone and become refugees, at least temporarily.”

Goldstone, in fact, limited his efforts to investigating the combat methods used by both sides.

Hamas was accused of war crimes chiefly because it had fired primitive rockets into Israel that targeted civilian areas. Israel’s violations of the laws of war were more extensive. The Goldstone Report found that Israel had attacked mosques, hospitals, apartment buildings, refugee shelters and UN compounds, destroying and damaging thousands of buildings. It had used white phosphorus in densely populated areas. Its soldiers had targeted civilians in dozens of separate incidents, taken human shields, and blocked access to ambulances. And it had attacked infrastructure, including the electricity, water and sewage systems, without a lawful military reason.

In a damning conclusion, the Goldstone report argued that Israel had “viewed disproportionate destruction and creating maximum disruption in the lives of many people [in Gaza] as a legitimate means to achieve not only military but also political goals”. Goldstone insisted that Israel and Hamas conduct their own credible investigations into these allegations. Otherwise he threatened to recommend that his report be referred to the International Criminal Court (ICC) in The Hague to prepare for prosecutions for war crimes.

Benjamin Netanyahu, prime minister at the time of the report’s publication, ranked the report as one of the three gravest “strategic challenges” facing Israel, alongside Iran’s suspected nuclear programme and the rockets aimed at Israel by Hamas and the Shia group Hizbullah in Lebanon.

Eighteen months later

In his Washington Post article, Goldstone retracted one of the main findings of his original report – the one that has most irked Israel. A re-examination of Israeli conduct, he wrote, suggested that “civilians [in Gaza] were not intentionally targeted as a matter of policy”. He also praised the Israeli army for conducting investigations into some 400 incidents during Cast Lead – unlike Hamas which, he noted, had not carried out a single probe.

Goldstone’s timing may have been significant. He offered his reassessment a few days after the UN Human Rights Council, which appointed his fact-finding mission, recommended that the General Assembly refer the Goldstone Report to the Security Council. In doing so, the council initiated a mechanism designed to move the report to the ICC as a prelude to a possible war crimes tribunal.

As expected, reactions to Goldstone’s rethink were polarised. Israel hailed the opinion article a “vindication”, with Netanyahu demanding that the UN consign the Goldstone Report to the “dustbin of history”. The White House backed Israel. It had opposed the Goldstone Report from the outset, both because it reflexively supports Israel in international forums and does not want the charge of war crimes levelled against either the US or its allies. Susan Rice, the US ambassador to the UN, told the foreign affairs committee of the US House of Representatives that the Obama administration would like to “see this entire Goldstone proposition disappear”. The US Senate, meanwhile, passed a resolution calling on the UN to rescind the report. The White House, it was reported, was working behind the scenes to get US allies to add their weight at the UN to get the report withdrawn.

Ranged against Israel and the US were Goldstone’s three distinguished – though until now largely unnoticed – co-authors: Hina Jilani, a prominent Pakistani human rights lawyer; Christine Chinkin, professor of international law at the London School of Economics; and Desmond Travers, a former Irish colonel and expert in international criminal investigations. In mid-April, they published a rebuttal to the Goldstone article in the UK Guardian. They rejected the idea the report needed revision “as nothing of substance has appeared that would in any way change the context, findings or conclusions.”

Another notable expert, John Dugard, a South African law professor and the UN former special rapporteur on human rights in the occupied Palestinian territories, wrote of Goldstone: “It is sad that this champion of accountability and international criminal justice should abandon this cause in such an ill-considered but nevertheless extremely harmful op-ed.”

Even Goldstone, who has mostly kept a studious silence on the controversy he has provoked, was forced to concede that he would not seek the report’s nullification at the UN.

So who was right: was Goldstone’s “reconsideration” an exoneration of Israel or an embarrassing endnote to his illustrious career?

Three issues reassessed

Goldstone’s article raised three significant issues. He observed that Israel had carried out investigations into 400 cases of possible misconduct by its troops. These investigations, he argued, while not ideal, had been done “to a significant degree” – implying that Israel had thereby obviated the need for a referral to the ICC.

Second, he stated that one of the most egregious acts by the Israeli military – in which it shelled a house, killing more than 20 members of the Samouni family sheltering inside – had later been shown to be an “error” made by an officer who misinterpreted an aerial photograph. The soldier was under investigation in an “appropriate process” despite “frustrating” delays.

Third, and most important for Israel, he withdrew the allegation that Israeli war planners had pursued a policy in prosecuting Operation Cast Lead that intentionally put civilians in harm’s way. He ascribed his team’s earlier conclusion to Israel’s failure to cooperate. Now, the Israeli investigations “indicate that civilians were not intentionally targeted as a matter of policy”.

Strangely, most of the Goldstone Report’s allegations of Israeli war crimes were not addressed at all in the Washington Post article. Goldstone also indicated that the Israeli investigations had produced no new public information on which to base a general retraction. But even his three specific reassessments failed to persuade most observers.

On the first point, it was true that Israel had conducted hundreds of investigations. But they had been carried out not by independent investigators but by the military in secret. None of Israel’s inquiries met the criteria set by Goldstone for being considered “effective” in the view of Israeli human rights groups such as B’Tselem, which had assisted Goldstone, or international groups such as Amnesty International and Human Rights Watch. And despite investigations, only two had led to convictions. In an indication of the skewed priorities of the military tribunals, a soldier found guilty of stealing a credit card was sentenced to seven months, while two soldiers who took a nine-year-old boy as a human shield were each given three-month suspended sentences.

As if mocking Goldstone for his new-found confidence in Israeli justice, Israel’s military advocate general, Avichai Mendelblit, revealed a fortnight after publication of the Washington Post article that the only other major case where a prosecution was known to be pending was to be closed without charges being filed. That case involved the fatal shooting of four Palestinian civilians, including a three-year-old, as they fled their home while waving a white flag. Mendelblit said the soldiers had not fired against orders.

Goldstone’s view was also contradicted by the two UN-appointed experts charged with monitoring implementation of the Goldstone Report. The pair – Mary McGowan Davis, a former New York supreme court justice, and Lennart Aspegren, a Swedish judge – had concluded in their own recent report that Israel’s investigations were not impartial, prompt or transparent.

On the second point, Goldstone referred to the killing of more than 20 members of the Samouni family, while making no mention of the 35 other war crime allegations the UN panel had wanted investigating. Where was the new evidence to justify reconsideration of these cases? Even with the Samouni family, the Goldstone Report concluded that Israeli soldiers “must have been aware of [the Samounis’] civilian status” because they forced the family to assemble in the targeted house. The report added that, even were the killings later shown to be the result of an operational failure, Israel would still be responsible for “an internationally wrongful act”.

And on the third point, about civilians being intentionally targeted, Goldstone appeared to be blatantly misrepresenting his mission’s own conclusions. The Goldstone Report had never suggested that Israel deliberately murdered civilians. “Intentionality” referred to Israel’s apparent policy of using indiscriminate and “deliberately disproportionate” force, and its “systematically reckless” approach to preventing civilian casualties during attacks on built-up areas of Gaza.

‘Going wild’

Goldstone’s team had deduced that this was Israeli policy because of the published comments of senior commanders such as Yoav Galant, who observed that Cast Lead’s goal was to send Gaza “decades into the past”. Similarly, politicians like Tzipi Livni, foreign minister at the time, had stated that Israel was responding to Hamas rockets “by going wild”.

The mission had also paid attention to an Israeli military strategy known as the Dahiya doctrine, named after a suburb of Beirut that Israel levelled during its 2006 attack on Lebanon. This strategy justified laying waste to large swathes of Gaza’s infrastructure, supposedly because it offered support to Hamas, despite the inevitable civilian casualties. In his article, Goldstone cast no fresh doubt on his earlier premise that such an approach to warfare would by definition endanger civilians.

In addition, an Israeli group of ex-soldiers, Breaking the Silence, has collected many testimonies from soldiers who served in Gaza indicating that they received orders to carry out operations with little or no regard for the safety of civilians. Some described the army as pursuing a policy of “zero-risk” to soldiers, even if that meant putting civilians in danger.

Why did Goldstone choose to cast doubt on his own carefully prepared report but then do so in such a shoddy manner that it served only to fuel doubts about his motives?

Goldstone’s friends, much like his enemies, have surmised that he buckled under the relentless pressure of the past 18 months that saw even some members of his own family ostracise him. The nadir was a threat last year from South Africa’s Jewish leaders to picket his grandson’s bar mitzvah if he dared attend. Alon Liel, a former senior Israeli foreign ministry official and long-time friend of Goldstone’s, noted that the “hell” he had been put through contributed to his rethink. “When Israel decided to boycott him, it was an overwhelming insult. ‘I’m a Jewish judge, a respected Zionist – and Israel doesn’t trust me?’ He was a broken man.”

The New York Times quoted other friends arguing that his about-turn reflected his disillusionment with the reponse to the report. He had mistakenly assumed that an even-handed report blaming both Hamas and Israel would pressure the Israeli and Palestinian leaderships into peace talks – much as an earlier commission he headed in South Africa helped to reconcile the white minority and the black majority, paving the way to apartheid’s end. Instead, said Aryeh Neier, another friend, the judge grew angry that his report had become “fodder to people who were looking for anything they could use against Israel”.

Ultimately, Goldstone’s rethink is unlikely to lead to his report being rescinded by the UN. However, it will strengthen the White House’s hand if, as expected, it decides to block the report at the Security Council.

Israeli officials believe Goldstone’s “koshering” of their military inquiries will lift the threat of Israeli politicians and soldiers being arrested on war crimes charges during trips overseas. Goldstone, they say, concluded that Israel fulfilled its obligations to investigate, freeing the international community of the need to intervene. More worryingly, however, Israel also appears to believe Goldstone has removed the danger of the UN investigating any future military operations – so long as Israel promises to conduct a similar internal inquiry. Veteran Israeli analyst Uri Avnery, a peace activist, warned: “Goldstone has now paved the way for another Cast Lead operation which will be far worse.”

Several Israeli government ministers are already calling for a Cast Lead 2. It seems they may yet get their way.

Jonathan Cook

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Jonathan Cook is a writer and journalist based in Nazareth, Israel. His latest book is Disappearing Palestine (Zed, 2008).